Citation Nr: 1317067	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  09-20 891	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for left ear hearing loss, to include as due to right ear hearing loss and/or tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion



ATTORNEY FOR THE BOARD

L. Edwards, Associate Counsel


INTRODUCTION

The Veteran had active service from April 1969 to May 1971.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

The issue of entitlement to service connection for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Right ear hearing loss is causally or etiologically related to service.

2.  Tinnitus is causally or etiologically related to service.


CONCLUSIONS OF LAW

1.  Service connection for right ear hearing loss is established.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

2.  Service connection for tinnitus is established.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 




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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  In this case, the Board is granting the benefits sought on appeal.  Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources.

II.  Service Connection Claims

The Veteran seeks entitlement to service connection for right ear hearing loss and tinnitus.  He asserts he was exposed to acoustic trauma during service and that he suffers from right ear hearing loss and tinnitus as a result of his time in service.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  However, this method is only applicable if the claimed disability is a chronic condition as set forth in 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.309(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Because diseases of the nervous system is specifically listed as a chronic disease under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is for application in the Veteran's claim of service connection for hearing loss and tinnitus.

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).  

Service connection may also be granted for an organic disease of the nervous system, such as sensorineural hearing loss or tinnitus, when it is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 

With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes.  For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  When the disease entity is established, there is no requirement of evidentiary showing of continuity.  If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992). 

A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009.  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Charles v. Principi, 16 Vet. App 370, 374 (2002).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011). 

However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

The Veteran asserts he was exposed to acoustic trauma during service.  The Veteran's DD-214 indicates he received the Combat Infantry Badge as well as multiple Rifle Marksman Badges and Bars.  As such, exposure to acoustic trauma during service is conceded.

A.  Entitlement to Service Connection for Right Ear Hearing Loss

Under C.F.R. § 3.385, medical evidence of current hearing loss requires a showing that the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or that the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 

The Veteran's service records were reviewed.  His entrance examination from June 1968 did not indicate any hearing abnormalities.  Treatment records are silent for any complaints or treatment of hearing damage.  The Veteran's discharge examination from April 1971 also did not note any hearing abnormalities.  

Post service, in April 1984, a hearing test indicated hearing loss, as defined by the VA, particularly in the right ear.  A VA outpatient note from June 2008 for audiology noted that the Veteran was exposed to small arms fire, mortar fire, and artillery fire during service.  Examination revealed a moderately severe sensorineural hearing loss at 3000 - 80000 Hertz.

The Veteran was afforded a VA examination in October 2008.  On the audiological evaluation in October 2008, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
25
70
65

Speech audiometry revealed speech recognition ability of 96 percent in the right ear.  

The results from the VA examination show current right ear hearing loss as it is defined by VA regulation, and therefore, the current disability requirement for service connection is satisfied.  However, the question remains whether a medical nexus exists between the current hearing loss and the Veteran's claimed in-service noise exposure.

The October 2008 VA examiner noted that audiometric data obtained at induction and separation from military service revealed normal hearing thresholds, although there was a significant shift in the right ear only at discharge at 2000 Hz and 4000 Hz when compared to the enlistment thresholds.  Therefore, the examiner opined that it is not at least as likely as not that the Veteran's service noise exposure met the definition of a disabling hearing impairment by adjudication standards.

The Board finds the October 2008 opinion to be inadequate.  The absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).  See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 

In August 2008, a VA outpatient note indicated that Veteran had right side mild to moderately severe downsloping sensorineural hearing loss.  The physician stated that in light of the chronicity of the Veteran's symptoms and absence of associated other symptoms, it is unlikely that the Veteran's right ear hearing loss is due to retrocochlear pathology and is more likely due to an initial noise-induced hearing loss from his time spent in the service.

Service connection for right ear hearing loss is warranted on a direct basis because the evidence is, at least, in relative equipoise.  While the October 2008 VA examiner did not relate the Veteran's current hearing loss to service, the August 2008 VA physician indicates that the Veteran's right ear hearing loss is at least as likely related to his time in service.  It is the function of the Board to resolve all doubt in favor of the Veteran.  Here, when the Veteran's statements, service personnel records, post-service treatment records and the positive medical opinion are considered, the Board finds that the evidence is at least in equipoise, and concludes that service connection for right ear hearing loss is granted.

B.  Entitlement to Service Connection for Tinnitus

As an initial matter, the Veteran was diagnosed with bilateral tinnitus during an October 2008 VA audiological examination.  The Board therefore finds that the evidence demonstrates a present disability, meeting the first requirement for the establishment of service connection.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

As for the second requirement for service connection, that a disease or injury was incurred or aggravated during service, as stated previously, exposure to acoustic trauma during service is conceded.  The Veteran's service records were reviewed.  His entrance examination from June 1968 did not indicate any hearing abnormalities.  Treatment records are silent for any complaints or treatment of hearing damage.  The Veteran's discharge examination from April 1971 also did not note any hearing abnormalities.  

Post-service records were reviewed.  It is important to note that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 

In this case, there is no dispute that Veteran is competent to report symptoms of ringing in the ears that he experiences because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  In June 2008, the Veteran reported high-pitch hissing tinnitus in the right ear.  In July 2008, he claimed tinnitus in both ears.  During the October 2008 VA examination, he reported a bilateral hearing loss, more so in the right ear, which sounded like "air coming out of a tire."  

The Board finds these statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Caluza v. Brown, 7 Vet. App. 498 (1995).  In this regard, the Veteran has consistently reported that he has experienced constant tinnitus, greater in the right ear, for many years. 

The Board acknowledges the October 2008 negative nexus opinion concerning the etiology of the Veteran's tinnitus; however, the Board notes that in rendering this opinion, the VA examiner failed to acknowledge the Veteran's accounts of continued symptomatology since service.  Additionally, the examiner appears to use the lack of a diagnosis of treatment of tinnitus during service in forming the negative opinion.  The Court has found that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion.  See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007).

Accordingly, because the October 2008 opinion does not contemplate the Veteran's lay reports of tinnitus since service, the Board finds this opinion to be of little probative value.  See Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet.App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's reports); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history).

Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  Given the competent and credible statements of record asserting constant tinnitus since service, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the establishment of service connection for tinnitus. 

In light of the discussion above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise.  As such, the Veteran's service-connection claim for tinnitus is granted.

ORDER

Service connection for right ear hearing loss is granted.

Service connection for tinnitus is granted.


REMAND

The Veteran seeks entitlement to service connection for left ear hearing loss.  

VA's duty to assist includes a thorough and comprehensive medical examination.  Robinette v. Brown, 8 Vet. App. 69 (1995).  The Board finds the duty to assist has not been met.  The Veteran was afforded a VA examination in October 2008.  The examiner offered an opinion regarding whether the Veteran met the definition of a disabling hearing impairment during service, but did not offer an opinion regarding whether the Veteran's current hearing loss is a result of his time in service.  Additionally, the Board notes that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  

Furthermore, as a result of this decision, the Veteran has been granted entitlement to service connection for tinnitus and right ear hearing loss.  When determining service connection, all theories of entitlement, direct and secondary, must be considered.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  Therefore, an addendum opinion should also be obtained regarding whether the Veteran's service-connected tinnitus and/or right ear hearing loss caused or aggravates his left ear hearing loss.  

Additionally, any updated treatment records should be obtained and associated with the claims file.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the claims file all updated treatment records.

2.  Obtain an addendum opinion to the October 2008 VA examination.  If deemed necessary by the examiner, afford the Veteran a VA audiological examination.  Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. 

 The examiner must be provided the claims folders, access to Virtual VA and a copy of this Remand.  The examiner should provide the following:

a)  The examiner should opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability), less likely as not (i.e. less than 50 percent), or more likely than not (i.e. greater than 50 percent probability) that the Veteran's left ear hearing loss is causally or etiologically related to service OR is proximately due to OR aggravated (a permanent increase in severity beyond natural progress) by his bilateral tinnitus and/or right ear hearing loss.  

In providing these opinions, the examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology.  All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved.  

If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.  

If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 

3.  The RO/AMC must ensure that all requested actions have been accomplished to the extent possible in compliance with this REMAND.  

If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken.  

4.  After completion of the above, the RO must readjudicate the claim.  If the issue remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond.  

Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs